‘Submit To Jurisdiction First’: Bombay HC Gives Vijay Mallya 'Last Chance' To Return Amid Extradition Battle

Mumbai: The Bombay High Court on Thursday gave fugitive businessman Vijay Mallya “a final opportunity” to return to India if he wished to pursue his challenge to proceedings initiated against him under the Fugitive Economic Offenders (FEO) Act.

Hearing Mallya’s petition challenging the application of the Fugitive Economic Offenders Act to his case, the division Bench made it clear that his continued absence from India could prove fatal to his plea.

“You have to come back. If you cannot come back, then we cannot hear this plea,” the court observed during the hearing, signalling its unwillingness to entertain the challenge without compliance with earlier directions.

SG: Cannot Avoid Law, Then Seek Equity

Solicitor General Tushar Mehta, appearing for the Centre, opposed Mallya’s plea, arguing that the businessman cannot remain abroad, contest extradition in London and simultaneously seek relief from Indian courts.

“He has filed an affidavit stating that the banks were wrong to demand money from him,” Mehta told the court, adding that Mallya was attempting to give a “colour of recovery proceedings” to his case.

“He has filed a petition challenging the Fugitive Act after being declared a fugitive. He can come and discuss everything in the affidavit, whether he is liable to pay or not liable to pay. He cannot ‘not trust’ the law of the country and then claim equity,” the SG argued.

Mehta further informed the court that extradition proceedings against Mallya in London are at an advanced stage.

“We are contesting extradition proceedings in London. It is at the fag end. Realising he will have to be extradited, he has challenged the proceedings here. The choice of challenging the proceedings is also telling,” he said.

Mallya’s Counsel Cites Asset Recovery

Senior Advocate Amit Desai, appearing for Mallya, argued that substantial recoveries have already been made by enforcement agencies.

“In India, the property has either been attached by the Enforcement Directorate or money has been recovered from others. This list has been disclosed in another proceeding. Another Rs 2,000 crore worth of property lies with the agencies,” Desai submitted.

At one point, the Bench asked, “What remains? What order can we pass?”

Desai maintained that an affidavit had been filed and sought to argue that under the statutory framework, his client could challenge the proceedings without physically returning to India.

“The very nature of this statute and the provisions in it allow me to challenge from outside,” Desai said, seeking to rely on a judgment to support the argument that personal presence was not mandatory at this stage.

Court Flags Non-Compliance

However, the Bench noted that its earlier direction to file a specific compliance affidavit had not been met.

“We never thought that you would not file a compliance affidavit,” the court remarked.

When Desai insisted that an affidavit had been filed, the court responded, “No, that is not the affidavit in compliance with what was directed. On non-compliance, we will pass some order.”

The judges also recalled that Mallya had previously argued he was entitled to be heard without submitting to the jurisdiction of the Indian court in person.

“There is a line you have already argued. When will you come? You have argued that you are entitled to a hearing without your physical presence. That has been taken note of,” the Bench said.

In a pointed remark, the court told the defence: “You file an affidavit saying ‘I won’t come’.”

Final Opportunity

While stopping short of dismissing the plea, the court indicated it may record that Mallya is avoiding the judicial process if compliance is not forthcoming.

“On that day, we were not inclined to pass the order. But now we may have to record that you are avoiding the process of the court, so you cannot take benefit of the proceedings. In fairness to you, we are not dismissing it. We are giving you another opportunity,” the court said.

The matter has been posted for Monday with the Bench directing the parties to submit a detailed list of dates to enable it to pass a reasoned order.

Mallya, who left India in 2016, has been declared a fugitive economic offender in connection with alleged loan defaults running into thousands of crores involving now-defunct Kingfisher Airlines. Extradition proceedings against him continue in the United Kingdom.

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